A federal judge has remanded to state court what could be the first ovarian-cancer-related talc case to be heard in Philadelphia.
U.S. District Judge Gene Pratter of the Eastern District of Pennsylvania remanded the case Kleiner v. Rite Aid from the district court to the Philadelphia Court of Common Pleas. Although the case had been initially filed in Philadelphia in January, the case was removed to federal court in early September.
According to Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck attorney Todd Schoenhaus, who, along with Nancy Winkler, is handling the case, Kleiner is the first of the high-profile talc cases to be sent back to Philadelphia after being removed from state court.
“This is important because it allows our case to be tried where it should be—in Philadelphia County where the plaintiffs rightfully chose the forum to have their case decided by fair-minded jurors and a great judiciary,” he said. “J&J and other defendants tried every which way to get this case away from where it belongs. They may have been successful in other matters, but Judge Pratter applied the law to the facts, and made the right decision.”
A review of the Eastern District court dockets showed that, including Kleiner, eight talc-related cases have been removed to the Eastern District, and all but Kleiner have been transferred to the U.S. District Court for the District of New Jersey, where a consolidated multidistrict litigation is underway.
Pratter’s decision hinged on whether complete diversity existed in the case, with the plaintiffs needing to show only that one claim existed against one non-diverse defendant. That defendant was Rite Aid.
J&J, which was represented by Drinker Biddle & Reath attorneys Chanda Miller and David Abernethy, argued that the pharmacy could not be strictly liable for any design or manufacturing defect, and that the plaintiffs failed to show that the products sold by Rite Aid caused the plaintiffs’ cancer. Rite Aid was also represented by Miller and Abernethy.
Pratter, however, said sellers can be held liable for design and manufacturing defects, and J&J’s argument about failing to show Rite Aid’s products caused the injuries “is better directed at a later stage in the litigation, when the Kleiners face a heavier burden of persuasion.”
“To be sure, the Kleiners may eventually face an uphill battle as to causation,” Pratter said. “But now is not the time to fight that battle. At this early stage, all that the court need conclude is that the Kleiners’ allegations of causation is legally possible.”
A spokeswoman for J&J declined to comment. Rite Aid did not return a message seeking comment.
Schoenhaus said it is more than likely Kleiner would have ended up in the MDL if it had remained in federal court, as briefing on the topic was underway and the parties were set to have a hearing before the Judicial Panel on Multidistrict Litigation about the case. But, given Pratter’s recent ruling, the case is set to stay in state court until it is resolved, Schoenhaus said.
In October, the JPML chose New Jersey as the site to house the growing number of talc-related ovarian cancer cases, but state-court-based talc litigation has produced numerous multimillion-dollar verdicts, including a few nine-figure awards, such as the $417 million verdict that a California jury handed down over the summer.
Although that record verdict and others that came out of state court have recently been tossed, plaintiffs lawyers continue fighting to have their cases heard in state court.
If Kleiner had been transferred into the MDL, Schoenhaus said, there would not have been a strict timeframe regarding the plaintiffs’ efforts to remand the case, and, even if the issue came before the court, then the plaintiffs would be asking a New Jersey judge to apply Pennsylvania law.
“We’re talking about a plaintiff who purchased and used products in Pennsylvania at all times,” he said. “Asking a district judge in New Jersey to apply Pennsylvania law is always a trickier proposition.”
Max Mitchell can be contacted at 215-557-2354 or firstname.lastname@example.org. Follow him on Twitter @MMitchellTLI.